Hunton Employment & Labor Perspectives

On Thursday, the California Supreme Court ruled that employees must be paid for time spent undergoing security checks before leaving work.

The ruling comes two years after the Ninth Circuit Court of Appeals sought guidance on this issue under California law in the case of Amanda Frlekin v. Apple Inc.  The question presented to the California Supreme Court was:  Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as “hours worked”?  The Supreme Court answered “yes,” after closely examining the specifics of Apple’s security practices and policies.

California law requires employers to pay employees a minimum wage for all “hours worked,” which includes time the employee “is subject to the control of an employer.”  Apple, like many retailers, requires its employees to clock out before submitting to an exit search of bags and personal devices (such as iPhones), whenever they leave the worksite.  Employees estimated that the searches typically last five to 20 minutes, but could be as long as 45 minutes on a busy day.  Apple employees are not paid for this time, and employees who refused the search are subject to discipline.

The federal district court, where the case was initially pending, determined the time was not compensable because employees could have avoided the search by not bringing a bag or other personal items to work.  On appeal of the certified question, the California Supreme Court disagreed and determined that Apple’s “exit searches are, as a practical matter, required.” The Court opined that the employees were “clearly under Apple’s control while awaiting, and during, the exit searches.”  However, the Court stressed that “the mere fact that the employer requires the employees’ activity” does not necessarily mean such activity is compensable time.  Rather, Courts must examine “the level of the employer’s control over its employee.”  To determine the “level of control” the Court examined several factors, including: the mandatory nature of the activity, the location of the activity, the degree of employer control, whether the activity primarily benefits the employee or employer, and whether the activity is enforced through disciplinary measures.

Applying those factors to the exit searches, the Court determined that the searches “are required as a practical matter, occur at the workplace, involve a significant degree of control, are imposed primarily for Apple’s benefit, and are enforced through threat of discipline.” Thus, the Court concluded, “according to the ‘hours worked’ control clause, plaintiffs must be paid.”

In favor of its position that the security checks are not compensable, Apple argued that it does not require employees to bring bags or personal electronic devices to work, so employees can avoid a search by leaving such items at home.  The policy, therefore, is for the convenience of the employees as it allows them to bring personal items to work.    The Court rejected this argument, stating that theft deterrence – for the benefit of Apple – was the true motivation for the policy.

Finally, the Court advised:  “Apple may tailor its bag-search policy as narrowly or broadly as it desires and may minimize the time required for exit searches by hiring sufficient security personnel or employing adequate security technology. But it must compensate those employees to whom the policy applies for the time spent waiting for and undergoing these searches.”

In light of this ruling, California employers should review their bag check practices to evaluate whether employees are being properly paid for time spent during security searches.  In addition, this case serves as a reminder for employers to be cognizant of other “employer required activities” and to evaluate whether such time should be considered “hours worked” under the Court’s decision.